BulletinTaking Responsibility

June 19, 20180

In evaluating workers’ compensation claims, we sometimes have to deal with the question of who of multiple employers or carriers is responsible for compensating an injured worker for an injury.  In this edition of the Bulletin, we draw your attention to two recent Court of Appeal decisions where the court had to deal with this question in unusual contexts.  However, before getting to those cases, we would like to inform you of some exciting developments in our firm which exemplify the good things that happen when people demonstrate the ability to take on responsibility.

A Change In Our Management Committee. For the last eight years, Mullen & Filippi’s practice has been governed by the three person Management Committee of Barbara Walsh, Carol Powell, and Bruce Wade.  Throughout this time, they have taken on the responsibilities of managing the overall functioning of the firm, maintaining and building client relationships, and still handling their own client caseloads.  Last year, Carol even earned the distinction of becoming the first female recipient of the Star Bar of California Workers’ Compensation Section defense attorney of the year. Effective July 1, 2018, the firm has decided to let them slow down a little, and has appointed a new management committee, consisting of Bob Sherman, Paula White, and Chris Morrow.

Bob Sherman, who currently manages the firm’s Sacramento office, is returning to the Management Committee, having been chairman of the Management Committee from 2001 to 2010.  Paula White is currently Managing Partner of the firm’s Stockton office, and has been with Mullen & Filippi since 1998.  Chris Morrow is the Managing Partner of the firm’s Los Angeles office.  Chris joined the firm in the San Francisco office in 2002, left to work for another firm in Southern California in 2004, and then returned to Mullen & Filippi upon the opening of the firm’s Van Nuys office in 2008.  We look forward to their leadership, and thank them for agreeing to take on this significant responsibility.

New Partners! We are also very pleased to announce that Medy Beauchane and Darlene de Guzman have been named Equity Senior Partners in the firm, and James Cotter and Karly Tambara have been promoted to Associate Partner.

Medy is the Managing Partner in the firm’s Chico office, and has been a workers’ compensation defense attorney since 2005.  He also practices in the area of subrogation. Darlene is the Managing Partner in the firm’s San Francisco office, and first started with Mullen & Filippi in 2001.  Both are certified specialists in workers’ compensation.  The decision to name them Senior Partners was unanimous.

James practices in the firm’s Oakland office, and has been with Mullen & Filippi since 2016.  Karly practices in the firm’s Orange office, and has been with Mullen & Filippi since 2015.  They are also both experienced in subrogation as well as workers’ compensation defense.

Becoming an Associate Partner and then Senior Partner only happens when an attorney has worked hard, taken on responsibilities, and shown a high level of competence in their work.  We congratulate all our new partners!

Whose Employee?   In the last edition of the Bulletin, we discussed the California Supreme Court case Dynamex Operations West v. Superior Court, in which the California Supreme Court declared a new test for determining whether a worker is an employee or independent contractor.  This seems to have been a big issue for the courts lately, because we now have two more cases addressing when someone is, and is not, an employee.

The first case, Gund v. County of Trinity, involved a husband and wife who sued the County of Trinity when they were injured by a murderer while checking on a neighbor.  Mr. and Mrs. Gund did not work for County of Trinity.  One night, they received a phone call from a deputy sheriff, asking them to check on a neighbor who had called 911 for help.  The deputy sheriff told them he thought the call was likely related to inclement weather.  Instead, when they arrived at the house, they were attacked by a person with a knife who had just murdered their neighbor and then went after them.  They asserted that the deputy sheriff had knowledge that there was something more dangerous involved than bad weather, and misrepresented the facts to them, causing them to be injured.

The County defended the lawsuit by claiming that the Gunds’ exclusive remedy was workers’ compensation.  Relying on Labor Code §3366, which provides that a person “engaged in assisting any police officer in active law enforcement service at the request of such police officer” is an employee, the County asserted that the Gunds were acting in that capacity when they were injured.  Finding that the statute applied to the circumstances of the case, the trial court found them to be employees of the County.  The Court of Appeal affirmed the decision.

The second case, Diaz v. S&R Farm Labor Contractor, Inc., provides an unusual twist on the general employer/special employer scenario.  In this case, the question was not which employer was responsible for a workers’ compensation claim by a shared employee.  Instead, the question was whether the general employer of a supervisor was liable for the supervisor’s negligence when he was working on loan to another company.

The case involved two farm labor contracting companies.  The supervisor worked for one company called S&R.  Another company, Gold Grower, asked to borrow him to have him supervise a group of Gold Grower’s employees. They agreed that Gold Grower would obtain payment for his services, forward that money to S&R and S&R would issue his paychecks. In all other ways, he effectively worked for Gold Grower.  Gold Grower then got a contract to harvest grapefruit and assigned the supervisor to supervise the crew.  While they were harvesting the crop, one of the workers was electrocuted when the metal ladder he was using hit some power lines.  The worker’s family filed a wrongful death lawsuit.  Gold Grower was dismissed from the lawsuit as the special employer based on the exclusive remedy. The supervisor was also protected by the exclusive remedy. At issue was whether S&R should also be dismissed.  S&R was not protected by the exclusive remedy, because S&R had no employment relationship with the injured worker.  Nonetheless, the Court held that S&R should be dismissed.  Even though S&R was the supervisor’s general employer, S&R did not have any control over his actions at the time of the accident, and as a result, did not have vicarious liability for any negligence by the supervisor.

The essential question in both of these cases was who had responsibility for providing compensation for an injury.  In their unique ways, both cases affirmed that the exclusive remedy for these injuries was workers’ compensation.

This Bulletin was written by Karen Dutton, Associate Attorney in our San Francisco office.

Need Assistance? Are you interested in having M&F attorneys design a customized training or claim review round-table meeting for your office? We’d be happy to provide on-site assistance as required to help you meet the challenges of today’s claims administration issues, and to assist you in complying with all regulatory guidelines. Contact us today at education@mulfil.com for further details or to schedule a seminar!

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